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Agua Caliente Water Rights Lawsuit Puts Agencies in Hot Water

Gale Courey Toensing

7/17/13

The Agua Caliente Band of Cahuilla Indians has launched a legal battle, based on its aboriginal water rights, for clean water and plenty of it for its citizens and neighboring communities in the Coachella Valley.

The Band filed a federal lawsuit in May asking the court to declare that the tribe has “prior and paramount” rights to ground and surface water in the Coachella Valley, to quantify those rights, and stop the local water authorities from further degrading the quantity and quality of water in the aquifer. The lawsuit was filed in the U.S. District Court for the Central District of California and names the Coachella Valley Water District (CVWD) and Desert Water Agency (DWA) as defendants.

"The failed stewardship of the Coachella Valley's most precious resource by these water districts has to stop," Agua Caliente Tribal Chairman Jeff L. Grubbe said in a statement. "We do not take this action lightly but as a Sovereign Nation, we have a responsibility, as well as a commitment to communities in the Coachella Valley, to protect and preserve the Valley's natural resources. We cannot sit idly by as the aquifer continues to be depleted and the water polluted. Our water quality is among the worst in the state."

The lawsuit says the two water agencies have adversely affected the quantity and quality of the Valley’s groundwater for decades by overdrafting the groundwater while importing Colorado River water with higher levels of salinity and dissolved solids. A water quality study conducted by the U.S. Geological Survey found higher levels of contaminants in Coachella Valley aquifers compared to the rest of the state.

"Since at least the 1990s, the Agua Caliente and others have aggressively urged the CVWD and DWA to take action to end the mismanagement, overdrafting and polluting of the aquifer underlying the Coachella Valley," Grubbe said. "The tribe has patiently attempted to work with CVWD and DWA to address these long standing concerns but to no avail. This precious resource is crucial to the future of this region and we must take action now."

The tribe cites long settled federal law to support its senior water rights claim, including a precedent-setting Supreme Court decision in 1908, Winters v. United States, which set the standard for tribal water rights on reservations. The high court concluded, among other things, that when the U.S. government created Indian reservations, it intended that the people on the reservations would become self-reliant and self-sufficient. Since water is needed to achieve self-sufficiency, for example, in agriculture, water rights were implicitly reserved for tribes in establishing reservations, the court said.

The Cahuilla Indians, ancestors of the Agua Caliente Band of Cahuilla Indians, have lived in the Coachella Valley since “time immemorial” and the reservation was established in 1876, therefore, the Band argues, the tribe's surface and groundwater rights are the most senior in the Coachella Valley, predating all water rights decreed or otherwise claimed under California State law.

The lawsuit asks for an injunction blocking the agencies from withdrawing groundwater from portions of the valley’s aquifer, and also an injunction blocking them from using “inferior” untreated Colorado River water to replenish the aquifer.

The two agencies filed separate but similar responses to the lawsuit on July 8, denying that the tribe has “aboriginal title” to the surface and ground waters of the valley. Their responses say that the groundwater they supply to customers meets federal and state water quality standards, and that the tribe “does not have ‘ownership’ of pore space in any aquifer underlying the Coachella Valley.” They also argue that the water storage space provided by the aquifer is a “public resource.” And they ask the court to dismiss the lawsuit.

Grubbe issued a statement saying the tribe would review the CVWD/DWA responses, but emphasized that the tribe’s lawsuit is about the future of Coachella Valley’s water supply. ”What is most astonishing is the water agencies continue to deny there is any issue with the water. Independent investigations and their own documents attest to the fact that the local water is being depleted and polluted,” Grubbe said. “We are asking the federal court to declare our senior water rights so we can be proactive in partnership with Coachella Valley residents and prevent the Desert Water Agency and the Coachella Valley Water District from continuing to overdraft the aquifer and degrade the quality of existing groundwater.”

The water agencies have warned there will be a hike in water bills if the tribe wins in court, a claim Grubbe called a “deceptive attempt. … to frighten the public and mislead the community.” He pointed out that the water agencies have regularly increased rates over the past 10 years sometimes as much as 394 percent. “This is not about rates,” Grubbe said, “it is about ending the mismanagement of our water resources and protecting it for generations of Coachella Valley residents to come.”

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